As we reported previously, the National Labor Relations Board ("NLRB") issued a rule in August requiring all employers to post workplace notices about employee rights to join a union. This effort by the NLRB to require posting about union organizing rights in all workplaces has caught the attention of the employer community more than any NLRB action in recent memory. The rule reaches into the workplace of all employers except for those few which are outside of the NLRB’s jurisdiction. [See our earlier post that outlines NLRB jurisdiction]. Briefly, if you are wondering if you are covered, you probably are covered. The original effective date for the rule was to have been November 14, 2011, but that effective date was delayed when lawsuits were filed in two federal district courts challenging the NLRB’s authority to issue such a rule. The new effective date is January 31, 2012 and the arguments in the lawsuits challenging the posting rule are beginning to take shape.

In a case before the federal District Court for the District of Columbia, all of the parties filed motions for summary judgment on October 26, 2011. (National Ass’n. of Mfrs. v. NLRB, D.D.C., No. 11-CV-1629). In addition to the National Association of Manufacturers, others challenging the NLRB rule in this case include the National Right to Work Legal Defense and Education Fund, Inc., the Coalition for a Democratic Workplace, the National Federation of Independent Businesses, and several specific employers. The primary arguments being made by those challenging the posting rule include:

• The NLRB’s jurisdiction is limited to specific cases where unions are trying to organize employees (representation cases) and cases where an employer has been charged with committing an unfair labor practice ("ULP"). The law does not allow the NLRB to impose obligations on employers which are not the subject of a representation case or being charged with a ULP. Therefore, the NLRB cannot require all employers to post the notice.
• The NLRB has exceeded its authority by stating in its rule that the failure to post will be considered a ULP. The NLRB cannot create new ULP’s which are not found in the National Labor Relations Act and that law does not include a posting requirement.

The primary arguments made by the NLRB in support of its posting requirement are:

• The NLRB has authority to enforce employee rights, such as the right to engage in union organizing activity without fear of punishment by their employers. The NLRB argues that "… full and free exercise of NLRA rights depends on employees knowing those rights and that the Board protects those rights."
• Employees must be made aware of their rights to file ULP charges with the NLRB and of the time deadlines that apply for filing charges.
• It is appropriate to charge employers with a ULP if they fail to post because employee knowledge of their rights is essential to a full and free exercise of those rights and an employer’s intentional refusal to post constitutes interference with employee rights.

The Judge has scheduled oral arguments for December 19, 2011. The other case which challenges the NLRB’s right to require posting was filed by the United States Chamber of Commerce and others and is pending in the U.S. District Court for the District of South Carolina. Also, Senator Thune (R-S.D.) has introduced legislation that would block the NLRB’s posting rule, but the Senate has not taken any action on that Bill.

We will continue to post future developments that may impact the NLRB’s posting rule and the current January 31, 2012 effective date.